F.A.O. No. 115-M of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No. 115-M of 2008
Date of decision: 17.02.2009.
Poonam Rodha ...Appellant
Versus
Chander Shekhar Rodha ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. R.S.Bajaj, Advocate, for the appellant.
None for respondent
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S.D.ANAND, J.
Though the learned Trial court recorded a finding that the
appellant-wife had been able to prove that respondent-husband (who was
proceeded against exparte at the trial) had treated her with cruelty, she
was non-suited on a finding that there was an inordinate and improper
delay of 12 years in filing of the petition.
In appeal before this Court too, the respondent-husband did
not enter appearance inspite of having been served and exparte
proceedings were ordered against him by a Coordinate Bench of this
Court (T.P.S.Mann, J.), vide order dated 3.9.2008.
Learned counsel for the appellant points out that the learned
Trial Court did not appropriately notice the provisions of Section 23(1) of
the Hindu Marriage Act. It is argued that the appellant-wife did bring to the
notice of the learned Trial Court that she did not file a petition earlier as she
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wanted to marry her female child in the meantime.
The Hindu Marriage Act, no doubt, provides that a party which
files a petition after unnecessary and improper delay deserves to be non-
suited but, at the same time, the circumstances attending the delay in filing
of the petition have to be appreciated in the correct perspective. The
parties had only one child. The child of a broken family is at a certain
disadvantage from the social angle. A family of that category gets
unwittingly stigmatised and people, by and large, would be reluctant to
have matrimonial relationship with a member of that family. There was,
thus, nothing unnatural on the part of the mother-appellant to refrain from
filing a divorce petition till the time she was able to settle the only child of
the parties matrimonially. The marriage of the only child of the parites was
solemnised on 12.12.2006 and the present petition was filed on 12.6.2007.
In the context of the above facts, learned counsel points out
that the appellant is presently aged about 45 years and living members of
her natal family would like to see her matrimonially settled because her
parents are no longer alive. The present is, thus, a case in which the
appellant acted wisely in refraining from filing a divorce petition till such
time the only child of the parties got matrimonially settled. There is
nothing unnatural on the part of living members of her natal family to get
her married and settled matrimonially. In that context, we cannot lose
sight of the fact that the world is fast opening up and even a marriage at
the age of 45 years would not be unusual.
It is apparent from the record that respondent-husband was
never ever interested in defending the petition. The inference can safely
be culled out from the fact that he opted to stay away from the proceedings
of the trial Court and none entered appearance on his behalf before this
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Court as well.
In the light of the fore-going discussion, the petition shall
stand allowed. The marriage between the parties shall stand dissolved
with effect from the date of this order.
February 17, 2009 (S.D.Anand) Pka Judge